Over at Crime & Federalism, Mike urges defendants to put it all on the table at trial because of the futility of criminal appeals.  He supports his position by pointing to  the odds of winning, together with the egregious decision in People v. Milosavljevic, 
affirming a conviction despite the appellate court finding the victim’s story

may seem highly unusual, if not improbable, to many people, we cannot conclude her testimony was inherently improbable or unbelievable.

While I agree wholeheartedly with Mike’s primary position, that the best chance of prevailing is at trial, and that’s where every defendant needs to focus all his energy, not to mention financial resources, his reasoning troubles me.  As to the Milosavilievic decision, it’s one example of a bad, no make that horrible, rationale that exposes an unfortunate tendency amongst appellate courts to render result-oriented decisions. 

This is often what comes of cases with bad facts and worse evidence, where the proof may suck but the panel feels that the bad guy got what he deserved, and so the court stretches to sustain the verdict.  When the decisions are fact based, it’s of no precedential value and does nothing more than skim over the law to reach the desired result.  But it’s one case, and that’s not enough to prove much of anything.

More significant are the odds of winning an appeal: 

Ruggero Aldisert, author of Winning on Appeal and one of the finest federal appellate judge, offers these sobering statistics :

United States Court of Appeals—National Average of Reversals
[for 2002]

 

 

 

ALL APPEALS……………………. 9.5%
Criminal…………………………………5.6
U.S. Prisoner Petitions…………..9.5
Other U.S. Civil Cases…………..11.0
Private Prisoner Petitions……….9.9
Other Private Civil Cases……….12.2

From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court:

• All appeals: 1 in 10
• Criminal cases: 1 in 18
• Private civil actions: 1 in 9

These numbers reflect federal appeals, which are a harder win than state appeals in most jurisdictions.  They also reflect all criminal appeals, meaning those that have little or no chance of winning, but are filed pro forma because people have the right to appeal even when they lack any grounds.  Some are Anders briefs (which state that there are no non-frivolous issues on appeal) and others are just mailed in, sounds without fury.   Still, this isn’t to say that the chances of winning on appeal are decent, or even reasonable.

There are a host of reasons why otherwise good cases fail on appeal.  Some, like Milosavilievic, may reflect a results-oriented failure.  Others fail for lack of preservation by trial counsel, where a great appellate issue might exist but for the trial lawyer’s having dropped the ball and failed to object, or having made a strategic choice to go for the acquittal at the risk of losing an appellate issue.  It may also reflect a artful trial judge who sanitizes the record to cover any potentially reversible issue.  There are lots of tricks available that will frustrate an appeal.

Another problem stems from the defendant’s inability to understand the concept of an appeal.  Defendants often think that an appeal is a new trial, a do-over if you will, where they get to present new evidence, argue the opposite of what was argued at the first trial, or at least some variation on a theme.  When they learn that an appeal is based solely on the trial record, that there will be no new testimony or evidence, and particularly that they won’t be brought into court, shackles or not, to sit beside their lawyer, anger and frustration ensues.  It doesn’t matter that they’ve been told all of this already, as clearly and emphatically as possible.  Somewhere in their head is a bone that blocks out the noise emanating from a lawyer’s mouth and hears only those sounds that comports with their deepest desires.

Despite all these reasons why appeals should fail, they don’t.  At least not always, and not when there is the combination of good appellate issues, advocacy and effort.  There’s a fighting chance.  It’s neither a joke nor a waste of time.  Reversals of convictions happen, and the only better feeling than reading that the indictment is dismissed is to hear the jury foreman utter the words “not guilty.”

The point is that the first, and best, opportunity to win is at trial, and no effort or expense should be spared if you’re putting your life on the line before a jury.  Try a case to win, and nothing else.  Of course a lawyer should preserve appellate issues, as it’s just a part of good lawyering, but unless you’ve reached the point in trial where you are certain that the verdict is going to be guilty, decisions must be made to win at trial rather than to create the best appellate record ever.

But if the trial goes south, and the verdict is guilty, that doesn’t mean all hope is lost.  Your appeal may not be a winner for many reasons, and most won’t be for lack of legal basis, no matter how badly the defendant wants to win.  But there are winners, and they are often the product of excellent appellate lawyering.  Don’t save for them, but should appeal be the only avenue remaining, don’t despair either.  There is a good fight to be had, and it is worth the effort.